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Case Reports: General Law
Big win for veterans
A recent Court of Appeal decision has far-reaching implications for veterans suffering prostate cancer, and their widows and other dependents. The ruling could lead to the Repatriation Commission accepting prostate cancer as a war-caused disability if a veteran has a war-caused smoking habit.
The Veterans Association of Australia (VVAA) had argued, amongst other things, that the standard of proof used by the Repatriation Commission and its medical authorities to determine whether a disease/injury was war-caused was too high. The Association had challenged the written criteria linking Prostate Cancer to war-service. The VVAA argued that a reasonable hypothesis exists to link smoking and prostate cancer.
Reasonable hypothesis is the standard of proof outlined in the Veterans' Entitlements Act (1986) to establish whether a condition is war-caused. The Government amended the Act in 1994 to introduce written criteria setting out what factors would be considered to link war-service with a disability. The amendments retained the reasonable hypothesis test, but established the Repatriation Medical Authority (RMA) to identify the relevant factors. Previously a veteran was required to find his/her own medical evidence supporting a link.
The RMA developed its own scientific guidelines to determine whether it would accept a factor linking the disability to war service. The VVAA argued that these guidelines were too high a test. The Court, per the Chief Justice and Handley JA, found that the standard used by the RMA required that a factor "was related" to war service, rather than simply "can be related " as required by the reasonable hypothesis test.
The case turned on statutory interpretation. The Chief Justice noted that current law requires the courts to consider context in the first instance and not wait until an ambiguity is identified.
The VVAA had originally lodged an appeal in 1996 with the Specialist Medical Review Council (SMRC) established to review the decisions of the RMA. The SMRC is now required to rehear the appeal in line with the Court's view that if there are scientific studies that show a factor can be related to the disability, it should be included in the list of war-caused factors.
This decision has far-reaching implications for those veterans who are suffering prostate cancer, and their widows. It also impacts on all other listed criteria (Statements of Principles) where the reasonable hypothesis was the relevant test. There are hundreds such statements, covering a wide range of disabilities. It has the potential of entitling many thousands of service personnel, who served in a theatre of war, to have their diseases recognised as war-caused.
In the first instance, the Veterans Advocacy Service will be seeking review of the osteoarthritis and hypertension criteria. There are significant scientific studies that link stress with hypertension, and micro-multiple traumata with osteoarthritis.
Elizabeth Sadleir Veterans' Advocacy Service |
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